Enough with the Holy Founders and Their Undemocratic Constitution

In a foreword to John Nichols and Robert W. McChesney’s important book Dollarocracy: How the Money and Media Election Complex is Destroying America (New York: Nation Books, 2013), U.S. Senator Bernie Sanders wrote that, “we cannot govern our own affairs when our national, state, and local debates are bought and sold by billionaires, who use thirty-second commercials to shout down anyone who disagrees…The money and media election complex, producing a slurry of negative ads, spin, and obstruction, is not what the founders intended.”

Sanders was right to suggest that the United States’ revered “founding fathers” would be scandalized by the plutocratic madness of the big money and big media elections racket that passes for popular democracy in the ever more openly oligarchic U.S. today. Jefferson, Madison, Adams and other U.S. founders (including even the state-capitalist Alexander Hamilton) would be revolted by the crass commercialism and mass-marketed manipulation that lay at the heart of contemporary major-party U.S. politics.

“Let the People Be Taught…”

Still, we should not imagine that the founders were champions of anything remotely like popular self-rule. Democracy was the last thing they intended. Drawn from the elite propertied segments of late British colonial North America, the delegates to the U.S. Constitutional Convention shared their compatriot John Jay’s view that “the people who own the country ought to govern it.” As the celebrated U.S. historian Richard Hofstader noted in his classic text The American Political Tradition and the Men Who Made it (1948): “in their minds, liberty was not linked not to democracy but to property.” Democracy was a dangerous concept to them, conferring “unchecked rule by the masses,” which was “sure to bring arbitrary redistribution of property, destroying the very essence of liberty.”

In Hofstader’s account, the New England clergyman Jeremy Belknap captured the fundamental idea behind the Founders’ curious notion of what they liked to call popular government. “Let it stand as a principle,” Belknap wrote to an associate, “that government originates from the people, but let the people be taught…that they are unable to govern themselves.”

Hofstader’s take on the Founders was born out in historian Jennifer Nedelsky’s comprehensively researched volume Private Property and the Limits of American Constitutionalism (1990). For all but one of the U.S. Constitution’s framers (James Wilson), Nedelsky noted, protection of “property” (meaning in essence the people who owned large amounts of it) was “the main object of government.” The non-affluent, non-propertied and slightly propertied popular majority was for the framers “a problem to be contained.”

To be perfectly blunt, popular sovereignty was the U.S. founders’ ultimate nightmare.

Against “the Secret Sigh for a More Equal Distribution”

Anyone who doubts the anti-democratic character of the Founders’ world view should read the Federalist Papers, written by the leading advocates of the U.S. Constitution to garner support for their preferred form of national government during the late 1780s. In Federalist No. 10, James Madison argued that democracies “have ever been spectacles of turbulence and contention” and “incompatible with…the rights of property.” Democratic governments gave rise, Madison felt, to “factious leaders” who could “kindle a flame” amongst the dangerous masses for “improper and wicked projects” like “the printing of paper money,” “abolition of debts,” and “an equal division of property.”

“Extend the [geographic] sphere [of the U.S. republic],” Madison wrote, and it becomes “more difficult for all who feel it to discover their own strength and act in union with each other.” That was an explicit statement of anti-democratic/anti-popular intent. So was the following argument given by Madison at the Constitutional Convention on behalf of an upper U.S. legislative assembly (the Senate) of elite property holders meant “to protect the minority of the opulent against the majority” and to thereby “secure the permanent interests of the country against innovation:”

“In framing a system which we wish to last for ages, we should not lose sight of the changes which ages will produce. An increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, and secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in in this Country, but symptoms, of a leveling spirit, as we have understood, have sufficiently appeared in a certain quarters to give notice of the future danger. How is this danger to be guarded against on republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded against? Among other means by the establishment of a body in the government sufficiently respectable for its wisdom and virtue, to aid on such emergences, the preponderance of justice by throwing its weight into that scale. Such being the objects of the second branch in the proposed government, a considerable duration ought to be given to it.”

Checkmating Democracy

Consistent with these openly authoritarian sentiments, the nation’s rich white fathers crafted a form of “popular government” (their deeply deceptive term) that was a monument to popular incapacitation. The U.S. Constitution’s preamble claimed that, “We the people” had formed a new government “in order to…establish Justice… promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” But the framers’ fear and loathing of the “wicked,” “factious” and “violent” masses shaped the structure of America’s not-so democratic experiment at inception.

The Constitution divided the federal government into three parts, with just one-half of one of those three parts (the House of Representatives) elected directly by “the people” – a category that excluded blacks, women, Native Americans, and property-less white males (that is, most people in the early Republic). It set up elaborate checks and balances to prevent the possibility of the common people influencing policy to any significant degree. It omitted any mechanism to enforce elected wealthy representatives’ direct accountability to “the people” between elections and introduced a system of intermittent, curiously staggered elections (two years for the House, six years for the Senate, and four years for the presidency) precisely to discourage sweeping and focused electoral rebellions by the majority. It created an elite Supreme Court appointed for life with veto power over legislation or executive actions that might too strongly bear the imprint of the dangerous masses. It sanctified the epic un-freedom and anti-democracy of black chattel slavery, permitting slave states to count their savagely disenfranchised and incapacitated chattel towards their Congressional apportionment in the House of Representatives. The Constitution’s curious Electoral College provision guaranteed that the popular majority would not directly select the U.S. president —even on the limited basis of one vote for each propertied white male.

It is true that the Constitution’s Article V provided a mechanism technically permitting “We the People” to make critical amendments to the nation’s charter document. But the established process for seriously amending the U.S. Constitution is absurdly difficult, short of revolutionary and civil wars (and of course the U.S. War led to the Constitutional abolition of slavery and the formal introduction of Black voting rights, not actually achieved in durably practice until won by the Civil Rights Movement during the middle 1960s). As the progressive Constitution critic Daniel Lazare observes, “Moments after establishing the people as the omnipotent makers and breakers of constitutions, [the 1787 U.S. Constitution] announced that they would henceforth be subject to the severest of constraints. Changing so much as a comma in the Constitution would require the approval of two-thirds of each house of Congress plus three-fourths of the states.” At the end of the 18th century, that means that 4 of the 13 states representing less than 10 percent of total U.S population could forbid any change sought by the rest. Today, 13 of the nation’s 50 states can disallow constitutional changes while containing just more than 4 percent of the nation’s population.

“The people,” Lazare remarks, “did not assert their sovereignty in Philadelphia in 1787. Rather, the founders invoked it. Once they uttered the magic incantation, moreover, they hastened to put the genie back in the bottle by declaring the people all but powerless to alter their own plan of government.” This harsh reality defies both the Constitution’s preamble and the U.S. Declaration of Independence’s determination that governments “derive[e]…their just powers from the consent of the governed.” It negates popular sovereignty, as intended.

As Lazare and other Constitutional scholars have shown, we are still dealing on numerous levels with the purposefully authoritarian consequences of the nation’s practically deified founding charter. Democratic politics are gravely crippled in the U.S. by numerous factors and forces (not the least of which is the development of a modern corporate and financial capitalism of epic national and global reach) that have developed and emerged over the last 22-plus decades, but the democracy-deadening procedural grip of the revered U.S. Constitution continues to play a critical role in that disablement.

Moves to Amend

U.S. progressives have long advocated constitutional amendments meant to more properly align U.S. politics and policy with public opinion, which stands well to the left of both of the nation’s reigning, business-captive political organizations. Among the changes proposed through the amendment route: abolition of the anti-majoritarian Electoral College and the introduction of direct national popular election and majority choice either in a first multi-party round or (if no candidate attains a majority in the first round) a runoff race between the top two presidential candidates; reversal of the Supreme Court’s equation of political money and “free speech”; the full public financing of campaigns (eliminating private money from public elections); undoing the special legal “personhood” protections enjoyed by corporations and reversing the plutocratic Citizens United decision; the introduction of proportional representation (whereby seats are awarded to parties in accord with their share of the vote, opening the door for significant third, and fourth parties) into Congressional elections; the elimination of partisan gerrymandering in the drawing of electoral districts; an economic democracy amendment requiring (among other things) that economic institutions incorporate internal democracy, social responsibility, and environmental sustainability; the mandating of well-funded and genuinely public and non-profit, non-commercial media.

But chances are slight for winning real socially progressive and democratic changes in the nation’s economy, society, and polity through constitutional amendments when alteration in the nation’s political and government rulebook require the support of super-majorities among plutocratically selected politicians who sit in the US Congress and in the nation’s 50 state legislatures largely at the behest of the nation’s unelected dictatorship of wealth. The same corporate and financial largesse that plays such a critical role in tilting the nation’s elections towards the business-friendly right would also come into play in powerful ways in fighting efforts to amend the U.S. Constitution to further the causes of social justice, equality, democracy, and environmental sustainability.

Serious About Popular Sovereignty

Around the planet, “constitutions do not last very long.” As the U.S. academicians Thomas Ginsburg, Zachary Elkins, and James Melton note in their book The Endurance of National Constitutions (2009), “The mean lifespan [of national constitutions] across the world since 1789 is 17 years. …the mean lifespan in Latin America and Africa is 12.4 and 10.2 years, respectively…Constitutions in Western Europe and Asia typically endure 32 and 19 years, respectively… [Since] World War I, the average lifespan of a constitution …[is] 12 years.”
The U.S. is different. Its absurdly venerated founding constitution has remained in place with occasional substantive amendments over more than 220 years. The absurdly long endurance of this purposefully authoritarian, wealth- and property-protecting document is nothing to be proud of.

Those who advance progressive amendments to the U.S. Constitution are right to sense the importance of a nation’s rule-making political and governmental charter. Still, given the intentionally remarkable difficulty of amending the US Constitution in progressive ways and the profoundly and purposefully undemocratic nature of the Constitution more broadly, it really makes more sense for Left (and other) U.S. democracy activists to think of constitutional change in terms of a total re-write. Pardon my sacrilege, but it’s long past time to stop standing in awe of the framers’ explicitly authoritarian document and to think about designing and creating a new governmental structure appropriate to social and democratic values in the 21st century. Serious advocates of popular sovereignty should call for – imagine – a new U.S. Constitutional Convention dedicated to building and empowering popular democracy, not checkmating and containing it[1]. Other countries hold such constituent assemblies (for example, Venezuela in 1999, Bolivia in 2006-7, and Ecuador in 2007-2008) and so should the U.S. Certainly, it’s absurd to think that a document crafted by wealthy slave-owners, merchants, and other vast property-holders with the explicit purpose of keeping the “wicked” popular majority and its “secret sigh for redistribution” at bay can function in meaningful service to popular self-rule in the 21st (or any other) century.

Paul Street is the author of They Rule: The 1% v. Democracy (Paradigm, 2014).

1. So argues the highly respected legal scholar and professor Sanford Levinson. See his books Our Undemocratic Constitution (Oxford University Press, 2006 and Framed: America’s 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012).

10 Comments

Because, Ed, a Constitution Convention can only be called in accordance with Article 5 of the Constitution to have any binding effect.

“…or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress;,,,”

Carl, let me clarify what I was trying to say. Contrary to Street, those who want real democracy need a new social contract, not just a new U.S. Constitution. Further, this new social contract can NOT be created within the framework of the U.S. nation state and existing U.S. Constitution. Why would anyone think that doing governance the same way, over and over again is going to produce a different result?

I’m unaware of any part of the Constitution that forbids other procedures for amending it. Who can cite such provisions?

Article 5 provides four pathways, two for proposing amendments and two for ratifying. AND that doesn’t forbid a Constitutional Assembly under the “right of assembly” under Amendment 1; or a convention under Amendments 9 and 10 as well. AND the Preamble states clearly that “We the people” “do ordain and establish” the Constitution. What the people can establish, we can re-establish, obviously.

There are many parts of the Constitution that, in practice, are not black and white. The Reconstruction amendments were not passed strictly according to Article 5. The southern states that voted to propose and ratify those amendments were under occupation, and were forced to affirm the new amendments.

The Vice-president, as president of the Senate, could not cast the decisive vote under his or her own impeachment, obviously—though it is written.

A conservative, fundamentalist, literal view of the amending process would invoke the letter of Article 5, as Carl Davidson has done, and make it exclusive. But the spirit of We the people in the Preamble; the spirit of the Declaration of Independence in its Preamble “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness”; and the spirit of Amendments 1, 9 and 10, each point to popular sovereignty through the usual mechanisms for amending—initiative-and-referendum and convention-and-referendum.

To redesign our national government to create policies which reflect the will of the majority of American citizens is the task before us. A conservative, fundamentalist, literal view of amending, such as proposed by Carl Davidson, will only perpetuate the militaristic plutocracy under which we and much of the world now suffers.

Paul Street’s essay makes a thorough, insightful contribution to the underlying causes of our profoundly undemocratic national government. So few scholars and activists think divergently enough (think the Divergent Series films) to even question the Sacred Scroll of our national government to sort out its good parts from its undemocratic parts—parts which continue to enable the corporate, militaristic, tyrannical plutocracy our government has become. Bravo to Paul for connecting the dots. He makes reference to the great work of Daniel Lazare and Sanford Levinson, among others, in his analysis. For anyone who wants to improve our government’s domestic and foreign policies, take a look at Paul’s summary of the third leg of policy—electoral and constitutional policy. Understanding must come before action. And the causes of problems contain the origins of the solutions.

Levinson addresses CD’s fears. There’s too much obsession with Citizens United in the Bernie Sanders shtick, which I just took in yesterday. I heard at least two people mutter (while Bernie spoke in Iowa City) that the U.S. was already hopelessly plutocratic before the decision (and yes of course it was a terrible decision). It is absurdly difficult to amend the US Constitution (as Lazare ad Levinson and numerous other experts note) short of revolutionary wars and Civil Wars (we could use both today but that seems off the schedule at present…though who knows). That’s very much by original framer design. We/they will not pass an amendment repealing the CU decision. To repeat, it’s good for folks to focus on the nation’s charter, rule-making document (it’s a really big and often underestimated deal), but it makes more sense to think about a total re-write of this anachronistic parchment bequeathed by 18th-century authoritarian-republicans of vast wealth. Other countries commonly revisit their core charter documents in the name of (imagine) popular sovereignty (here in U.S. it is absurdly considered sacrilege to suggest such a thing) Popular self-rule was the founders’ ultimate nightmare; they were quite explicit about that and they constructed a document that matched their view and which still cripples democratic politics centuries later. No Gods, no masters, and no worship for holy republican constitutions from the Age of Louis XVI. Let’s off the powdered wigs; they look ridiculous. Ed I think the Beard book has not stood up very well to critical scrutiny over the decades. It’s pretty discredited in the historical literature…too narrowly economistic and instrumentalist. The Nedelsky monograph is the best study is my sense.

Beard stood up quite well during his time – he was considered one of America’s most influential historians by those New Dealers who actually tried and partially succeeded in reforming the U.,S. government. It was the post-WWII capitalist-apologist historians who discredited him as the intellectual basis for rolling back the New Deal reforms. Beard’s status today reflects just how successful they were.
On another note, in response to Carl. Its not about excluding people, just as it isn’t about taking their power, or government. It’s about creating our own power – the power of self-rule. If some people don’t want self-governance, I say screw’em.

The problem with call for a Constitutional Convention is that you can’t exclude anyone from it.

There are any number of forces on the right and far right that want to amend and re-write it, too, ranging from the ’10thers’, who want to ditch all amendments after the 10th, to the anti-abortion folks, to those who think the whole thing is way too secular, and needs to re-written along ‘Biblical lines.’

So take a look at the balance of forces, lest you open a Pandora’s box.

But yes, in the meantime, we need, at least, to work on two amendments: the ERA and repealing Citizens United.

Why can’t you exclude people? Most especially, those that want to have some representative corporate stooge, bankster shill or oligarchic lackey rule for and over them. The real problem is one of size, i.e. scale. Trying to have self-governance institutions based on nation states of over 300 million is guaranteed to end up with more of the same. We need to look to people like Bookchin and smaller institutions for actually functioning self-governance. The Rojava constitution is a good starting point for looking at how to restructure society – think perestroika and glasnost. The problem is creating a new system of governance not trying to maintain the hierarchical structures of the old. Building that new world requires excluding and where necessary resisting counter-revolutionaries.

A convention, by its very nature excludes people, for any convention is a tiny sampling of the people represented by it. Here is constitutional scholar Sanford Levinson’s delegate selection proposal from his recent book “Framed: America’s 51 Constitutions and the Crisis of Governance” (reviewed by Justice Stevens in the NY Review of Books).

Here is the text from pages 391-392:

“So what is to be done? Here, I reiterate the conclusion to Our Undemocratic Constitution: we need a new constitutional convention, one that could engage in a comprehensive overview of the U.S. Constitution and the utility of many of its provisions to 21st-century Americans. I also hope that the electorate in states that allow voters to call new state conventions exercise that option and provide a classic modern laboratory that might convince their fellow Americans of the possibility of new constitutional conventions, even in America, in the new millennium. How would the delegates to be selected? As suggested by the earlier discussion of lotteries as alternative to elections for appointment, I would advocate the delegates from each state, proportionate to overall population, with very limited restrictions on selection (the most obvious one being age). I would give these delegates the salary for two years of the Supreme Court justice or senator, given the public importance of their job, and also to make possible service by the less well off. They would also collectively operate with the budget sufficient to allow hearings all over the United States and the world that would allow them to make the most informed choices possible regarding the kinds of issues examined throughout this book.

“I know all too well from discussions with friends and family that many, probably most readers will reject this call out of hand. Only rarely, I suspect, will rejection simply reflect high support for the constitution(s) we how have. If one believes it isn’t broken, then there is no reason to think it needs a convention (or anything else) to “fix” it. But I have found that many of my interlocutors agree with many, whether or not all, of my criticisms. However, they’re basically terrified what might happen if their fellow citizens, however selected, actually embarked on serious reflection about the Constitution with the possibility of changing it should they find it inadequate. Their terror derives from a basic mistrust of their fellow Americans. No doubt these readers resonated with many of the unflattering descriptions of “lower orders” offered by Madison and Hamilton, to engage in the tasks of governance. This is why there is not an iota of direct democracy in the U.S. Constitution; yet we live in a country where 49 of the 50 state constitutions express, in their basic structures, a higher regard for ordinary Americans.”

“I believe that lottery selection would protect us against takeovers of the Constitutional convention by single issue zealots who might, with the support of generous financing, prevail in elections. I earlier rejected the analogy between legal interpretation and “rocket science.” This is also true with regard to “constitutional design.” Many of the issues raised in the book involved basic value choices that ordinary Americans are capable of making. Take presidential vetoes based only on policy grounds. One might like them if one agrees with Hamilton that we should be fearful of basic played impetuous (or corrupt) legislatures; one would reject them, or at least make it easier for legislatures to override vetoes, if one had greater faith in the “wisdom of crowds” instantiated in legislatures. And so on.”

Many U.S. states have constitutional conventions regularly. Collectively the States have had 233+, according to John Dinan’s book “The American State Constitutional Tradition.”

Under these conventions and various initiatives, the states have created over 150 new constitutions and over 12,000 new amendments.

Montana calls on the citizen residents of Montana every 20 years to call a convention if they so choose. These states excluded people, for they included only a small number of people via their delegate selection process.

For anyone who thinks Paul’s article is somehow pie-in-the-sky, or is trembling and scared of the right (as Carl Davidson seems to be), just read the amending history of our own states:

Anyone interested in more on the founding patriarchs and their representative “shamocracy” – something that is not what it purports to be; a spurious imitation; fraud or hoax – and especially alternatives, should check out two books that discuss democracy and self-governance from a contemporary perspective . Marina Sitrin and Dario Azzellini : “They Can’t Represent Us: reinventing democracy from Greece to Occupy” and David Graeber “The Democracy Project: a history, a crisis, a movement.” Of course for those inclined to read the classics there is always, Charles A. Beard, “An Economic Interpretation of the Constitution of the U.S.”